Friday, January 11, 2013

In Central Rabbinical Congress of the USA & Canada v. New York City Department of Health & Mental Hygiene, (SD NY, Jan. 10, 2013), a New York federal district court refused to issue a preliminary injunction to block enforcement of the New York City Health Department's rule requiring that a mohel (Jewish ritual circumciser) obtain a written informed consent form from parents before he performs a circumcision using the oral suction technique (metzitzah b'peh). The rule stems from concerns that those Orthodox Jewish mohels using the method can pass on herpes infections to infants. (See prior posting.) In a 93-page opinion, the court, rejected both compelled speech and free exercise facial challenges to the rules. The court concluded since parents will likely be able to obtain the consent forms from various sources, not just from the mohel who will perform the ceremony, parents will be able to give the signed form to the mohel without any communicative action by the mohel. It found that for free exercise purposes, the health department regulation is a neutral law of general applicability that protects children's health and parents' ability to care for their children:

Although there are no known instances other than MBP in which direct oral suction during circumcision is practiced, the facial neutrality test is satisfied because the language of the regulation is secular.... Section 181.21 does not accomplish a “religious gerrymander[]” through underinclusiveness ..., nor does it impose “‘gratuitous restrictions’ on religious conduct” through overinclusiveness....